Panel SA: Companies maneuver and STF judges patent renewal

The First Panel of the STF (Federal Supreme Court) decides, this Friday (16), whether there is legal support for a flood of lawsuits filed by companies trying to maintain the validity of their expired patents.

Last year, the full Supreme Court ruled that renewal, plain and simple, is unconstitutional.
Based on this understanding, companies went to Inpi (National Institute of Intellectual Property) and requested a new registration for the same product or service.

However, the average period for analysis and decision on the matter varies between six and nine years. Therefore, the applicants went to court using an international mechanism known as the PTA (Patent Term Adjustment).

The maneuver allows for the extension of the patent in cases of delay in analyzes by regulatory bodies – INPI, in this case.

What the ministers of the STF are going to analyze this Friday is the possibility of companies obtaining in court the extension of the patent for a period corresponding to the analysis period of the INPI.

This would happen in cases where the body took time, without justification, to release the analysis and licensing of patents – considered by the claimants as a standard in the body.

Minister Luiz Fux is in favor of the possibility. Dias Toffoli and Cármen Lúcia have already voted against it. The votes of Luís Roberto Barroso and Alexandre de Moraes are missing.

Pharmaceutical groups, such as FarmaBrasil and PróGenéricos, claim that the PTA does not exist in Brazilian legislation and the decision of the STF last year was clear. “Nobody lost the right to patents, only those who had protection over 20 years no longer have it”, said Reginaldo Arcuri, president of FarmaBrasil.

A study by the Federal University of Rio de Janeiro shows that the end of the validity of patents on medicines would save SUS R$ 4 billion per year, an amount currently spent on branded medicines.

Julio Wiziack (interim) with Paulo Ricardo Martins and Diego Felix